Monday, June 27

The Prosecutor’s Office does not see a crime in the delay of the Constitutional on the abortion law | Spain


The Constitutional magistrate Andrés Ollero, in a file photo.
The Constitutional magistrate Andrés Ollero, in a file photo.VICTOR SAINZ

The Prosecutor’s Office has opposed the admission of the complaints filed against the Constitutional Court for alleged malicious delay in the resolution of the appeal against the current abortion law, pending resolution for 11 years. The initiatives to urge the opening of a criminal procedure were promoted by the Association of Christian Lawyers and by the Association Hazte Oír, for estimating the delay suffered by this sentence in every way unjustified. The report of the Prosecutor’s Office – to which EL PAÍS has had access – considers, in turn, that “none” of the “elements” constituting the aforementioned crime are present in this case, for which it has asked the Supreme Court to dismiss and file the complaint.

The Law on Sexual and Reproductive Health and the Voluntary Interruption of Pregnancy was appealed by the PP on June 1, 2010. After completing 11 years since this challenge was formalized, the aforementioned association of lawyers and various pro-life groups denounced the delay of the Constitutional in solving the case with different initiatives, among them the presentation of two complaints in the Criminal Chamber of the Supreme Court, before which the magistrates of the Constitutional Court are calibrated.

The writing focused on the rapporteur of the resolution, Andrés Ollero, although it has been extended to the presidents that the Constitutional Court has had throughout the 11 years that have elapsed since the abortion law was appealed. They are Pascual Sala —whose mandate spanned from 2011 to 2013—, Francisco Pérez de los Cobos —from 2013 to 2017—, and Juan José González Rivas, the current president.

The complaint was filed on July 14, coinciding with the date on which in 2010 the court of guarantees refused to adopt the suspension of the law as a precautionary measure, pending the ruling. The order by which this measure was denied justified its rejection in that “taking into account the interested parties in the claim”, the Constitutional Court “will give priority to the processing and resolution of this appeal.”

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Once the complaint was received in the Supreme Court, the Criminal Chamber asked the prosecutor for a report on the competent body to process it and the relevance or not of admitting it. The Prosecutor’s Office has agreed to report against the admission, understanding that the denounced events do not fit into the criminal type of malicious delay in judicial proceedings.

This criminal figure is described in Article 449 of the Penal Code, which provides a penalty of six months to four years of disqualification from employment or public office for the “judge, magistrate or judicial clerk guilty of malicious delay in the administration of Justice.”

The criminal type specifies that “malicious delay will be understood to achieve any illegitimate purpose.”

The criterion on the inadmissibility of the complaint has been based on the analysis of this precept, to reach the conclusion that the fact – the delay – exists, but not that it was intended to obtain an “illegitimate purpose”. On the other hand, the conduct contemplated in article 449 of the Penal Code falls under “crimes against the administration of justice”, as the Constitutional does not belong to it, as an institution regulated in the Magna Carta in a specific title.

“This crime”, the prosecutors’ report maintains, “takes place when the obligatory judicial resolution for a conduct is delayed, be it merely omission or consists in the fulfillment of useless or unjustified procedures from the legal perspective, in a manner incompatible with the rule of law and effective judicial protection and, furthermore, this is done in a way that pursues an illegitimate purpose ”. The brief emphasizes, on the other hand, that “none of such elements concur in the present case.”

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The report of the Prosecutor’s Office adds one last point against the admission of the complaint, based on the organic law itself that governs the operation of the court of guarantees. Article 4.2 of this law establishes that “the resolutions of the Constitutional Court may not be prosecuted by any judicial body of the State.” This point is complementary in the writing, once the lack of concurrence of the essential elements of the crime of malicious delay has been verified. But the mention of said legal text makes sense, taking into account previous judgments of the Supreme Court. The terms in which the appointment is made suggest the hypothesis that the Constitutional Court has considered it appropriate to resolve the non-inclusion of the debate on the current abortion law in the successive agendas of its plenary sessions for reasons for which it is not obliged to give explanations. .

The prosecutors, in any case, pose one last problem in their writing. It is related to the claim that the investigation of the alleged malicious delay be extended to the former presidents of the Constitutional Court, if the complaints are admitted. The answer in this case is affirmative, although two of the defendants – the former presidents of the Pascual Sala court and Francisco Pérez de los Cobos – have already finished their respective terms for years.

“It is well known,” the report stresses in this regard, “that two of the magistrates against whom the complaint is directed have ceased their status as members of the Constitutional Court. However, they were at the time of the commission of the acts that are imputed to them ”. Such acts were allegedly “committed, according to the complainants, in the exercise of their duties.”

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Therefore, for the prosecution it should be understood that the jurisdiction of the Supreme Court “is prolonged taking into account, before the cessation of professional activity [de dichos magistrados], the circumstance that the facts have been carried out in the exercise of the position, due to the great social significance that conduct such as the one charged in the performance of judicial functions may have ”.

Limits to court control

The Supreme Court issued two resolutions in 2014 and 2017 that delimit the actions that can be taken against decisions of the Constitutional Court. In one of them, the complainant alleged that the court of guarantees had unfairly rejected an appeal for amparo, in response to his request to access the free justice system. The order of the Supreme Court argued that “according to article 4.2 of the organic law of the Constitutional Court, this Chamber does not [la de lo Penal] the review of the decisions ”adopted by the court of guarantees. In its response to the other appeal, the Supreme Court stressed that “a disservice would be done to democracy and justice by giving fuel” to “pseudo-legal strategies that collide head-on with what is established in article 4.2 of the organic law” of the Constitution, which categorically affirms that its resolutions “may not be prosecuted by any jurisdictional body of the State,” not even by the Supreme Court.


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